Warner Bros. Defends Allegations It Abused Anti-Piracy Tool

In court papers filed this week, the studio reveals its views on whether fair use needs to be considered when causing files to be removed from the Internet.

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Very few actions cause more controversy online than when a copyright holder causes the takedown of material argued to be completely legitimate. For example, an uproar ensued last month when Lionsgate Entertainment registered a takedown notice on a remix video “Buffy vs Edward: Twilight Remixed." The video was removed from YouTube for a short time. Before the mash-up of Twilight and Buffy the Vampire Slayerwas reinstated after widespread news attention, the creator of the video cried foul since the video was cited as a quintessential example of fair use by the U.S. Copyright Office.

Since then, there have been efforts to collect a database of false DMCA takedowns. Meanwhile, there's been a legal debate over whether copyright holders must consider fair use before sending takedown notices.

Maybe that issue seems settled. Perhaps it isn't.

Last month, in a long-running case, a federal judge paved the way for a trial over Universal Music's takedown of a video showing a toddler dancing to the 1984 Prince hit "Let's Go Crazy."

The case, brought by Stephanie Lenz, is perhaps most famous for an early decision that suggested that copyright owners must consider fair use before sending takedown notices. In describing the good and the bad of a judge's recent ruling, attorneys from the Electronic Frontier Foundation -- representing Lenz -- had this to say in a blog post:

"The ruling provided further affirmation, if it were needed, that the DMCA does not give copyright owners the right to simply take down content without first considering fair use. Of course, that was already the law. But last week’s ruling also clarified that that "consideration" means making an actual legal determination. Universal had argued that it was enough to consider some facts that might be relevant to a fair use analysis. No cigar, said the court: a content owner must make an effort "to evaluate the significance of such facts" in the context of the fair use doctrine. That’s good news for the Internet – content owners can no longer pretend that the DMCA takedown process does not require actual thought and judgment."

Oh yeah?

The movie industry is currently involved in a lawsuit against the cyber-locker Hotfile. Last year, the storage service filed a counterclaim against Warner Bros. for allegedly abusing its anti-piracy tool. Warners is alleged to have caused the deletion of thousands of files "when in fact Warner had no right to do so."

Still fighting that claim, Warners pointed to the recent Lenz ruling to support its defense.

In a notice of supplemental authority on Wednesday, the studio said that while it was true that in 2008, a federal judge in the Lenz case had ruled that a copyright owner must evaluate fair use before sending a takedown notice, the studio added this:

"The Lenz Court later clarified that it was referring only to 'extremely rare' cases and that 'the Court did not hold that every takedown notice must be preceded by a full fair use investigation."

Warners attorneys also wrote that the latest Lenz ruling in January provided more affirmation of its position:

"Following Ninth Circuit precedent, the Lenz IV decision firmly holds that a 'mere failure to consider fair use would be insufficient to give rise to liability under §512(f). It thus rejects Hotfile's reading of Lenz I, and reaffirms Plaintiffs' position that a 512(f) claim requires evidence that the defendant had actual, subjective knowledge that it was sending a takedown notice on a noninfringing file."

In some smaller respects, there's common agreement with how Warner Bros. and the EFF are reading the recent Lenz ruling. The studio says that failure to consider fair use won't "give rise to liability," which is another way of saying there's really no penalty for not considering fair use. The EFF says in its own blog post the "the practical problem...If a trial is required to prove up a DMCA misrepresentation claim, few people victimized by unfounded takedowns will have the resources and time to obtain redress."

But there a much larger controversy here.

Warner Bros says that takedown victims have to show "actual, subjective knowledge," whereas the EFF says that takedown victims can demonstrate a copyright owner "willfully blinded itself to the potential application of the fair use doctrine."

In short, do copyright owners have to consider fair use? That's still subjective.